Now, of course one has to be cautious about an excuse offered by an unnamed official to a journalist on a document that may, or may not, have been officially leaked. The claim may not be true, if course, and may just look usefully convenient when the political will to act does not exist.

But suppose for a moment that the claim is true. Suppose that the EU – the largest supra-national legislator in the world – thinks it cannot legislate because of a legal minefield. Who created that minefield? What is the risk? And why can’t it be cleared?

The clear implication of this is unpalatable. As many of us have feared to be the inevitable direction of trade deals and agreements, the EU may now be signalling that it can only regulate companies to the extent that they concur with its wishes, and if they do not then the EU is recognising that the threat of legal action may be real.

In other words the rule of law is now conditional on the consent of those supposedly subject to it.

Corporate law may, then, be prevailing.

This is the route to the corporate state, and that is fascism.

The fight over country-by-country reporting is, then, no minor issue: this is about the right to decide who really rules and the stakes are very high indeed.

24 Responses to “Since when did legislating lead a jurisdiction into a legal minefield?”

Whilst agreeing that the EU Parliament should be asking the Commission to think again – and rather more clearly, trying to argue that the rule of law is not conditional on the consent of those subject to it is a line of argument that is very hazardous!

In the legal system it typically takes unanimity ( or close to it ) to take away a person’s liberty. But it only takes a Parliament to take the majority of someone’s income in life and almost half of the accumulated remainder in death. And if you’re an EU national resident in the UK then you don’t even get a vote for your MP in the first place.
Such is democracy.

I notice the Swedish Parliament has been given this advice, which is essentially to reject CBCR as it currently stands:https://t.co/MGI3E2gVzn

This has long been a sub-theme of many of your blogs and of many commenters on your blogs, Richard, as you know. But even though the emergence of the corporate state has been more and more visible for some time I think most of us – or at least, those of us who believe in democracy – like to believe that when push comes to shove it will be resisted.

And therein lies the problem, because the neoliberal hatred of the state and worship of markets does, by definition, take us to the corporate state. Furthermore, as all that remains of government – whether national or supra-national in form – becomes ever more dominated by actors who support and promote neoliberalism, and, in many cases are culturally and intellectually unable to envisage any other form of economic and social system, so the last vestiges of challenge to corporate control are whittled away. We witnessed that in the behavior of the EU and ECB to the Greek debt crisis. And here in the UK we see it on an almost weekly basis – as with the academisation (ie. privatization of schools and thus commercialization of education – as has already happened to HE).

So, whether the leak on which this blog is based is true or not is in many ways beyond the point. The corporate state already represents what the US has become and the UK is well on the way to the same end. Mainland European countries are thankfully some way behind, but if the EU has become yet another fiefdom of neoliberalism – as indeed I believe it has – then it is unsurprising that it is in the process of signaling acceptance of the corporate state, and all that brings with it.

I think this is the crux of the lacklustre enthusiasm many on the left feel for the EU. It is very unclear whether it will be easier to reform the UK alone or reform the whole EU as one. Do we abandon our European allies in the hope of winning a smaller battle at home. Or do we stay in an organisation that is seemingly wedded to many of the ideas we hope to throw off? Perversely, perhaps our leaving might even help the European left, as the UK is often foremost amongst those pushing the neoliberal agenda. Personally, I am very much in two minds. Neither choice seems to offer a promise of the world I would like to live in.

– the largest supra-national legislator on the planet is adopting such a supine position on the very basis of the rule of law – which is equality before the law – in regard to already over powerful corporate entities, particularly in the context of TTIP which extends and elevates the rights of these entities above everyone else’s rights in law;

and

-the neo liberal/conservative/feudalist consensus within all four main political parties within the UK, as a current member state, would not only welcome such a position but would actively seek to maintain, extend and strengthen such a position and prevent a single iota of reversal while ever THE UK remained an EU member state with a significant input into the decision and legislative process of that supra-national legislator;

Is the logical conclusion of accepting such a position that the European Project, as envisaged and defined by the progressive paradigm, has moved from life support to dead parrot mode and therefore by definition no longer capable of being revived/resurrected without a total reboot/scrapping everything and starting again from scratch?

and if so

Would continued UK membership, without a similar reboot of the UK superstate which results in the ending of the British State as it has existed since at least Tudor times, help or hinder such a process?

This seems to encapsulate the choice question facing progressives in the UK refurendum as to whether or not to remain a member state of a body which has taken on all the worst aspects of the US/UK Anglo-Saxon model of organisation as a result, at least in part, of the influence of the UK/British State being allowed membership in the first place. The idea that the progressive EC Project would veto the worst aspects of the Thatcherite model and provide a safe haven for UK progressives until we turned things around in our own back yard has turned out to be the exact opposite as Europe has embraced the neo liberal/conservative/feudalist paradigm.

In such a scenario the question has to be posed as to which bits/parts of what is currently the UK TTIP would be fast tracked into?

It is reasonable to surmise that any UK exit vote will be on the back of an middle England/former English working class precariat majority. So far the orthodox position has been that Scotland, possibly Wales and most certainly Northern Ireland (which benefits a great deal from UK membership), will likely deliver a majority for continued membership. A Brexit in those circumstances would trigger a fresh and serious move towards independence in Scotland to retain EC membership which might well spread to other peripheries who are out of step with middle England on EC membership.

However, that seems to be as far as the speculation goes. No one seems to be looking at breaking down the vote beyond the constituent and supplicant nations of the UK superstate. In the absence of evidence to the contrary (and there may well be such evidence, it’s just that I have not yet seen it if it exists) big business, corporate entities and finance in the UK and England, along with those parts of the population which are more diverse and internationally minded seem to be pro membership.

This being the case it is conceivable that even if a majority within England out vote the rest of the constituent UK to leave there may well be a majority to stay in large diverse conurbations such as London/Greater London within the M25, Manchester, Birmingham, and Leeds etc. That adds a further constituency to the periphery problems of Scotland, Wales, and Northern Ireland when it comes to a post Brexit UK settlement.

It is therefore by no means certain that a Brexit, achieved on the back of a middle England/precariat constituency, will reset everything back to 1973 and see the UK continue on its merry way as the UK as though nothing ever happened. There will most certainly be tensions which at the very least will undermine and start to dissolve the glue which holds the UK superstate and the British State upon which it is built together, if not start to tear it apart as different regions and constituencies seek different and incompatible settlements for their populations.

As such a scenario unfolds it would be interesting to see how high up the priority list TTIP would be.

So, the lights are going out all over Europe – but this type the threat comes from American style corporatism and not the ‘iron curtain’.

How ironic. But also sad, because it seems that the old post-war cold war choices between good and evil states was really about a war of ideas between to equally evil political and economic systems?

Maybe the immediate post war growth and prosperity in the West was only manufactured artificially in order to undermine the USSR and that maybe is what Picketty has actually picked up in his opus?

It is hard to know what to do about this. I know that I can only vote for politicians now who are less keen to follow America.

We must stop TTIP somehow.

But also, this development is extremely anti-democratic. It totally undermines the sovereignty of any State and deserves to be more widely known.

A courageous state would enact CbCR and then take the corporations on. Surely the logic that a Government is representing millions of citizens against a corporation seen in law as an individual can be dealt with legally? Some sort of test case could take place?

I’m still very, very uneasy with ”the rule of law is not conditional on the consent of those subject to it”
and “Law is frequently about imposing will on those who would rather not consent”.
I agree with the sentiment in the circumstances but absolutely not the philosophy.
Law in England, the old UK (and some of that of Scotland) at least was Common.
So that clearly presupposed – consent.

However if we were to say that if corporations are to be separate legal entities – under the rule of law – then that is a condition. And they have therefore by definition accepted the rule of law. If they do not incorporate then they are entitled to complain…

I think that is the important missing item in the blog.

For the corporations it’s almost like ticking ‘I agree with the terms and conditions’ before you can buy on the internet. So the corporations have by definition accepted the rule of law by their ‘legal’ incorporation.
That to me is a vital point!
Otherwise the danger is that the reasoning will fail.

I think we also have to be realistic about the fact that the law does impose on those reluctant to comply

Remember many companies would do CBCR without complaint if the law asked them to – so by definition those objecting are not willing to have the law imposed and the EU is worried they may have the right to do so despite majority consent

The UK should tax companies on their UK turnover rather than profit. It could then offer an alternative; if a company voluntarily provides an acceptable breakdown of its profits on a country-by-country basis it can opt to be taxed on its UK profits rather than on UK turnover.

The “turnover tax” rate could be set at a punitive level so that, in reality, paying tax on UK profits is always going to be preferable.

The tax returns from indigenous UK-only businesses will always be country-by-country by default so there is no extra burden on them.

“Honest” companies will already be doing a country-by-country analysis behind the scenes so there is minimal burden on them.

I always find it useful taking ideas to the limit so on basis of a corporation being a person in law means it must pay income tax and all the rules that come with it. They can not expect to get the advantages of person hood with out the consequences.